Click here to download the Asset Recovery 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 20 jurisdictions are covered in this report:

Australia; Bermuda; Canada; Cayman Islands; Cyprus; England & Wales; Greece; Hong Kong; Ireland; Italy; Jersey; Korea; Liechtenstein; Monaco; Nigeria; Serbia; Switzerland; Ukraine; United Arab Emirates; and United States.

Questions

The set of questions relating to the topic of asset recovery and answered by the guide for each jurisdiction covered include:

Civil asset recovery

• • Parallel proceedings: Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?
• • Forum: In which court should proceedings be brought?
• • Limitation: What are the time limits for starting civil court proceedings?
• • Jurisdiction: In what circumstances does the civil court have jurisdiction? How can a defendant challenge jurisdiction?
• • Time frame: What is the usual time frame for a claim to reach trial?
• • Admissibility of evidence: What rules apply to the admissibility of evidence in civil proceedings?
• • Witnesses: What powers are available to compel witnesses to give evidence?
• • Publicly available information: What sources of information about assets are publicly available?
• • Cooperation with law enforcement agencies: Can information and evidence be obtained from law enforcement and regulatory agencies for use in civil proceedings?
• • Third-party disclosure: How can information be obtained from third parties not suspected of wrongdoing?
• • Interim relief: What interim relief is available pre-judgment to prevent the dissipation of assets by, and to obtain information from, those suspected of involvement in the fraud?
• • Right to silence: Do defendants in civil proceedings have a right to silence?
• • Non-compliance with court orders: How do courts punish failure to comply with court orders?
• • Obtaining evidence from other jurisdictions: How can information be obtained through courts in other jurisdictions to assist in the civil proceedings?
• • Assisting courts in other jurisdictions: What assistance will the civil court give in connection with civil asset recovery proceedings in other jurisdictions?
• • Causes of action: What are the main causes of action in civil asset recovery cases and do they include proprietary claims?
• • Remedies: What remedies are available in a civil recovery action?
• • Judgment without full trial: Can a victim obtain a judgment without the need for a full trial?
• • Post-judgment relief: What post-judgment relief is available to successful claimants?
• • Enforcement: What methods of enforcement are available?
• • Funding and costs: What funding arrangements are available to parties contemplating or involved in litigation and do the courts have any powers to manage the overall cost of that litigation?

Criminal asset recovery

• • Interim measures: Describe the legal framework in relation to interim measures in your jurisdiction.
• • Proceeds of serious crime: Is an investigation to identify, trace and freeze proceeds automatically initiated when certain serious crimes are detected? If not, what triggers an investigation?
• • Confiscation — legal framework: Describe the legal framework in relation to confiscation of the proceeds of crime, including how the benefit is calculated.
• • Confiscation procedure: Describe how confiscation works in practice.
• • Agencies: What agencies are responsible for tracing and confiscating the proceeds of crime in your jurisdiction?
• • Secondary proceeds: Is confiscation of secondary proceeds possible?
• • Third-party ownership: Is it possible to confiscate property acquired by a third party or close relatives?
• • Expenses: Can the costs of tracing and confiscating assets be recovered by a relevant state agency?
• • Value-based confiscation: Is value-based confiscation allowed? If yes, how is the value assessment made?
• • Burden of proof: On whom is the burden of proof in a procedure to confiscate the proceeds of crime? Can the burden be reversed?
• • Using confiscated property to settle claims: May confiscated property be used in satisfaction of civil claims for damages or compensation from a claim arising from the conviction?
• • Confiscation of profits: Is it possible to recover the financial advantage or profit obtained through the commission of criminal offences?
• • Non-conviction based forfeiture: Can the proceeds of crime be confiscated without a conviction? Describe how the system works and any legal challenges to in rem confiscation.
• • Management of assets: After the seizure of the assets, how are they managed, and by whom? How does the managing authority deal with the hidden cost of management of the assets? Can the assets be utilised by the managing authority or a government agency as their own?
• • Making requests for foreign legal assistance: Describe your jurisdiction’s legal framework and procedure to request international legal assistance concerning provisional measures in relation to the recovery of assets.
• • Complying with requests for foreign legal assistance: Describe your jurisdiction’s legal framework and procedure to meet foreign requests for legal assistance concerning provisional measures in relation to the recovery of assets.
• • Treaties: To which international conventions with provisions on asset recovery is your state a signatory?
• • Private prosecutions: Can criminal asset recovery powers be used by private prosecutors?